Massachusetts Appeals Court Holds Property Owner Acquired Neighboring Land Enclosed by Fence

Boundary disputes between neighbors are not uncommon, and issues regarding adverse possession of bordering property may arise after many years have passed. The Appeals Court of Massachusetts reviewed such a dispute in the case of Paris v. Morris (Mass. App. Ct. Aug. 3, 2016). In Paris, the plaintiff brought a complaint against his neighbor, alleging trespass and seeking declaratory relief with regard to a fence that encroached on his land. The land court judge, however, found that the defendant had acquired the strip of land at issue through adverse possession. The plaintiff subsequently appealed that ruling to the higher court.

In Paris, a hedge approximately three feet in width and four feet high straddled the boundary at issue from at least 1960 to 1999. The hedge was maintained exclusively by the defendant and his late father until 1999, when it was removed, and a six-foot-high wooden fence was installed. Between 1999 and 2007, neither the plaintiff nor the prior occupants of the plaintiff’s property sought the removal of the fence, which was built on the plaintiff’s property.

In Massachusetts, title by adverse possession can be acquired if the claimant establishes his or her non-permissive use of the property, which is actual, open, notorious, exclusive, and adverse for a period of 20 years. The lower court found that, as a result of the exclusive maintenance of the hedge by the defendant and his father, and in addition to the years in which the fence was present, the 20-year statutory period had been met. On appeal, the plaintiff argued that the mere maintenance of the branches of a hedge on a boundary line that overhangs neighboring property cannot amount to an act of exclusion that is sufficient to meet the requirements of adverse possession, at least with regard to the property underneath the branches.

The appeals court confirmed that the crucial test is the degree of control that the defendant exercised over the side of the hedge located on the plaintiff’s land, as well as the land underneath. However, the court found that the testimony of the prior occupants of the plaintiff’s property indicated that they considered the outer limit of the hedge to mark the property line. In other words, they considered the defendant to be the owner of the entire hedge and the land underneath.

In addition, the appeals court held that the approximately 40 years of exclusive care by the defendant and his father of the entire hedge, including the portion that encroached over the plaintiff’s land, as well as the absence of any action taken by the previous occupants of the plaintiff’s land consistent with ownership of the land underneath the hedge, was sufficient to establish the defendant’s exclusive use of the property at issue.

An experienced property attorney can advise individuals who have questions regarding their legal rights to use and enjoy their land. At Pulgini & Norton, our talented Massachusetts lawyers represent clients in various real estate matters, including land use and building permits, closings and mortgages, adverse possession, and more. To discuss your concerns with one of our dedicated attorneys, call our firm at (781) 843-2200 or contact us online.

More Blog Posts:

Massachusetts Landowner Establishes Title to Fenced, Neighboring Property by Adverse Possession, Massachusetts Real Estate Lawyer Blog, published March 7, 2016

Massachusetts Land Court Determines Issues of Record Ownership and Adverse Possession in Property Case, Massachusetts Real Estate Lawyer Blog, published June 20, 2016

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